Objecting to Spinal Surgery for a Second Opinion - Part 2

Saturday, June 4, 2005 | 0

This is the second in a two part series by attorney Geoffrey K. Hansen on the spinal surgery dispute resolution process. The first part can be read by clicking on the article title in the sidebar at right.

How does the AD assign the second opinion physician? ADR 9788.5 The statute requires the Administrative Director to develop and maintain a list of qualified surgeons who have been found eligible to give second opinions under Labor Code section 4062 (b).

Within five working days of receipt of the objection, the Administrative Director randomly selects a physician from the list. The physician must be located within a 30 mile radius of the employees address provided that there are 6 candidates within this radius; if necessary, the radius can be expanded as necessary to include a pool of 6 candidates. - ADR 9788.5(a). Pending development of a computerized random selection program, the AD will make random selections based on zip codes. - ADR 9788.5(b).

Any physician with a "material affiliation" as defined in LC 4062(c) may not serve as the second opinion physician and if such an affiliation exists, the selected second opinion physician must notify the Administrative Director of the material affiliation within 5 working days of being notified of the selection. Upon this notification, the Administrative Director immediately selects a replacement second opinion physician. - ADR 9788.5(a,c).

Who arranges the appointment?
Within 5 working days of notification that he or she has been selected, the second opinion physician must send written notice of the selection and of the date, time, and place of any examination to the parties. - ADR 9788.5(c).

Can you object to the assigned second opinion physician?
Within ten days of the selection of a second opinion physician, either the employer or the employee may file a written objection with the AD on the basis that the second opinion physician has a material professional, familial, or financial affiliation as described in LC 4062(c). If the Administrative Director sustains the objection he or she will make a new selection. The statute does not include a mechanism to appeal a ruling on such an objection. - ADR 9788.5(d).

Is a physical examination required?
The second opinion physician decides whether or not to physically examine the patient-employee. An examination is necessary where the second opinion physician disagrees with the recommendation of the treating physician. If there is to be a physical examination of the patient-employee, the second opinion shall schedule the examination, sending written notice of the examination to the parties at least 10 days in advance of the examination. - ADR 9788.6(a).

Documents to be provided to the second opinion physician
The employer shall, and the employee may, furnish all relevant medical records to the second opinion physician, including x-ray, MRI, CT, and other diagnostic films, and any medical reports which describe the employee's current spinal condition or contain a recommendation for treatment of the employee's spinal diagnoses. - ADR 9788.6(b).

Service of documents on the employee
The employer must serve all reports and records on the employee, except for x-ray, MRI, CT and other diagnostic films and for other records which have been previously served on the employee. - ADR 9788.6(b).

Special Transportation Arrangements must be arranged by the employer
If a special form of transportation is required because of the employee's medical condition, it is the obligation of the employer to arrange for it. - ADR 9788.6(b).

Transportation expenses must be paid by the employer
The employer shall furnish transportation expense in advance of the examination in the same manner as any other medical travel.

Communication with the second opinion physician is strictly controlled
In all cases, routine communication dealing with the scheduling of appointments, missed appointments, the furnishing of records and reports, and the availability of the report is permissible. - ADR 9788.6(b)(1,2).

Ex parte contact between the second opinion physician and any party is prohibited except for during the examination. - ADR 9788.6(b).

In the case of a represented employee, communications between a second opinion physician and any party is permitted but must be in writing, with copies served on the other parties. - ADR 9788.6(b)(1).

In the case of an unrepresented employee, communications between a second opinion physician and any party is prohibited until after the report has been served. Presumably, any communication following issuance of the report should be in writing with copies served on the other parties. - ADR 9788.6(b)(2).

What if the employee misses the evaluation?
If the employee fails to attend an examination with a second opinion physician, and the physician is unable to reschedule the employee's appointment before the 35th day after receipt of the treating physician's report, the time to complete the second opinion process shall be extended for an additional 30 days. If a second opinion physician is unable to schedule another examination within the 30 additional days, the Administrative Director, upon request, will select another second opinion physician. - ADR ADR 9788.6(c).

Contents of the report - ADR 9788.7(b).
Reports of second opinion physicians must include, where applicable:

(1) The date of the examination;
(2) The patients complaints;
(3) A listing of all information received from the parties reviewed in preparation of the report or relied upon for the formulation of the physicians opinion;
(4) The patients medical history relevant to the treatment determination;
(5) Findings on record review or examination;
(6) The relevant diagnosis;
(7) The physicians opinion whether or not the proposed spinal surgery is appropriate or indicated, and any alternate treatment recommendations;
(8) The reasons for the opinion, including a reference to any treatment guidelines referred to or relied upon in assessing the proposed medical care;
(9) The signature of the physician.

The rule does not indicate the effect of a failure to include any required portions of the report.

If indicated, the second opinion physician may recommend a treatment or therapy different from that recommended by the treating physician. - ADR 9788.7(a).

When is the report due?
The second opinion physician must simultaneously serve the report on the Administrative Director, the employer, the employee, and the employee's attorney, if any, as soon as possible, but in no event later than forty-five days following receipt of the treating physician's report (as defined herein). The parties may agree in writing to extend the time to a later date. LC 4062(b), ADR 9788.8.

Payment for the opinion - ADR 9788.9.
Payment for the services of the second opinion physician shall be made by the employer.

If the physician examines the injured worker, the fee is the same as the fee allowed under Section 9795 for a Basic Comprehensive Medical-Legal Evaluation, without modifiers which might otherwise be allowed under Section 9795(d).

If the physician does not examine the injured worker, the fee allowed is equal to one half of the fee allowed under Section 9795 for a Basic Comprehensive Medical-Legal Evaluation, without modifiers which might otherwise be allowed under Section 9795(d).

ACTION FOLLOWING RECEIPT OF THE SECOND OPINION REPORT - AUTHORIZE THE SURGERY OR FILE A DOR:

If the report of the second opinion physician agrees with the treating physician's recommendation for surgery, the employer shall authorize the surgery and communicate that authorization to the treating physician within three working days of receipt of the second opinion physician's report. - ADR 9788.91(a)

If the report of the second opinion physician does not agree with the treating physician's recommendation for surgery, the employer shall file a declaration of readiness to proceed within 14 days of receipt of the second opinion physician's report, unless the parties agree with the determination of the second opinion physician or agreed second opinion physician, or unless the employer has authorized the surgery. - ADR 9788.91(b).

COMMENT:
These are very detailed and specific procedures. The objecting party should be careful to adhere to the dictates of the noted statutes and rules and to follow the instructions on Form 233 to the letter. Additionally, the deadlines must be strictly observed. There is good reason to believe that a failure to object in a timely fashion may result in a waiver of the objection or, at the least, a loss of the potential benefit of the second opinion procedures articulated in LC 4062. See Sandhagen vs.WCAB, 70 CCC 208.

The objection procedure appears to be mandatory and does carry sanctions if ignored by the injured worker or his or her physician.

"The employer shall not be liable for medical treatment costs for the disputed surgical procedure, whether through a lien filed with the appeals board or as a self-procured medical expense, or for periods of temporary disability resulting from the surgery, if the disputed surgical procedure is performed prior to the completion of the second opinion process required by this subdivision."

TABLE OF TIME REQUIREMENTS

Objection to a a treating physicians recommendation for spinal surgery:
Within 10 days of receipt of the treating physicians report

Assignment of a second opinion physician by the AD
Within 5 working days of receipt of the objection

Notification of selection and appointment by the second opinion physician
Within 5 working days of the physicians receipt of notice of selection

Notice of date, time and place of examination by second opinion physician
At least 10 days prior to the scheduled examination

Objection by a party to the selected physician for material affiliation
Within 10 days of the selection

Time limit for second opinion physician to submit report
Within 45 days of receipt of the treating physicians report (may be extended by agreement)

Communication of authorization for surgery to the treating physician
Within 3 working days of receipt of the second opinion calling for surgery

Filing a Declaration of Readiness where the second opinion physician disagrees with the recommendation for surgery
Within 14 days of receipt of the second opinion physicians report

Extension of time for examination where the employee fails to attend the evaluation
30 days unless the parties request assignment of a different physician

Notification to AD that the parties have selected an AME
One working day. ADR 9788.1(d).

Notification to AD that the employer withdraws the objection
One working day. ADR 9788.1(d)

Author Geoffrey K. Hansen is a principal in the law firm Hansen, LeClerc & Pressman. He can be reached by phone at (530) 247-0100, or by e-mail at geoff@hlp-law.com.

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The views and opinions expressed by the author are not necessarily those of workcompcentral.com, its editors or management.